R v Antoine

When an accused is found unfit to plead, an inquiry under section 4A(2) of the Criminal Procedure (Insanity) Act 1964 determines whether the accused committed the actus reus charged. The prosecution need not prove mens rea. A finding that the act was done is not a conviction.

The defence of diminished responsibility under section 2 of the Homicide Act 1957 is therefore unavailable. That defence applies only where the accused would otherwise be liable to conviction for murder.

Where objective evidence raises accident, mistake, self-defence or involuntariness, the prosecution must negative that defence beyond reasonable doubt. A merely speculative suggestion unsupported by evidence is insufficient.

The appellant, who had been indicted for murder and manslaughter, was found unfit to plead because of mental disability. A different jury subsequently found under section 4A of the Criminal Procedure (Insanity) Act 1964 that he had done the act of murder. The Crown Court ordered his admission to hospital and restricted his discharge without limit of time.

The Court of Appeal, in [1999] 3 WLR 1204, dismissed his appeal. It held that diminished responsibility under section 2 of the Homicide Act 1957 could not be raised in a section 4A inquiry.

The House considered whether diminished responsibility was available and, more broadly, whether the prosecution had to prove mens rea when establishing that an unfit accused had done the act charged.

1. Appeal dismissed unanimously. Lord Hutton delivered the leading speech. Lord Nicholls of Birkenhead, Lord Mackay of Clashfern, Lord Nolan and Lord Hope of Craighead agreed with his reasoning.

2. Per Lord Hutton, section 2 of the Homicide Act 1957 applies only to a person who, but for that section, would be liable to conviction for murder. Once an accused has been found unfit to plead, section 4A of the Criminal Procedure (Insanity) Act 1964 terminates the trial. The ensuing finding that the accused did the act charged is not a conviction. Diminished responsibility consequently cannot arise in that inquiry.

3. Per Lord Hutton, the words “did the act or made the omission charged” require proof of the ingredients constituting the actus reus. They do not require proof of mens rea. Parliament deliberately used “act”, rather than “offence”. This construction also balances protection of an accused who did nothing wrong against protection of the public from an accused who performed an injurious act while unfit to stand trial.

4. The contrary approach in R v Egan (Michael) [1998] 1 Cr App R 121 should not be followed. The ruling in Attorney-General’s Reference (No 3 of 1998) [1999] EWCA Crim 835; [1999] 3 WLR 1194, that the Crown must prove actus reus but not mens rea, was correct.

5. Per Lord Hutton, where objective evidence raises accident, mistake, self-defence or involuntariness, the jury cannot find that the accused did the act unless the prosecution negatives that defence beyond reasonable doubt. The defence cannot rely upon unsupported speculation about the accused’s mental state. Lord Hutton reserved the position concerning provocation and expressed no opinion on the meaning of “act” where liability for murder was alleged solely on a secondary-party basis.

1. House of Lords: Dismissed the appeal unanimously and affirmed the Court of Appeal’s conclusion. It also held that mens rea is not an issue in a section 4A inquiry.

2. Court of Appeal (Criminal Division): In [1999] 3 WLR 1204, dismissed the appeal against the Crown Court’s ruling that diminished responsibility was unavailable.

3. Inner London Crown Court: After the appellant was found unfit to plead, a jury found that he had done the act of murder. The judge ordered admission to hospital with discharge restricted without limit of time.